Wednesday, May 17, 2017

Does USERRA Validly Abrogate State Sovereign Immunity?

On Monday, the Supreme Court asked the Solicitor General to weigh in on the issue presented for cert. in Clark v. Virginia Department of State Police, 292 Va. 725 (2016): whether Congress can use its war powers to abrogate state sovereign immunity. This case involves a police officer who alleged that he was denied a promotion because of his service in the U.S. Army Reserves, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the current version of earlier military employment protections originally enacted in 1940 and expanded and modified many times in the intervening years. Among other things, USERRA prohibits employment discrimination against individuals because of their military service and guarantees reemployment rights following such service (for those interested in family leave reform, USERRA provides an example of more robust protections, including periods of just cause protection and promotion rights).

In 1998, Congress enacted an amendment to USERRA expressly permitting private rights of action against state employers in state court. This was an understandable reaction to the Supreme Court's 1996 Seminole Tribe of Florida v. Florida decision, where it held that Congress' attempt to abrogate states' 11th Amendment sovereign immunity against private rights of action for monetary remedies was invalid. It was largely assumed at the time that because the 11th Amendment only spoke of federal jurisdiction state courts could still be used, but the Court in Alden v. Maine (1999) later gave states immunity in their own courts, explaining that state sovereign immunity was part of the Constitution's design and not limited to the text of the 11th Amendment. USERRA's amendment, therefore, was then called into question and resulted in several court rulings finding it unconstitutional. These rulings, in my opinion, are wrong.

I wrote directly about this issue in Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?, 34 Seton Hall L. Rev. 999 (2004).  In the article, which also provides an overview of USERRA and a now-dated survey of state-law military employment protections, I argue that Supreme Court precedent allows for USERRA's abrogation of state sovereign immunity. The very brief version of my argument is that courts have misread some admittedly loose language by the Supreme Court suggesting that Congress can never use Article I to abrogate state sovereign immunity. By delving into the history of state sovereign immunity and the federal war powers under the plan of the Constitution, I argued that not only can Congress use its war powers to abrogate, but the case is particularly strong in this area, despite being under Article I. This argument was subsequently validated in part by Central Virginia Community College v. Katz (2006), in which the Court held that states "agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to 'Laws on the subject of Bankruptcies.'” My argument, very simply, is that if Congress can use its bankruptcy power to abrogate then surely it can use its war powers as well.

By asking for the Solicitor General's views in Clark, it appears that some Justices agree that the issue is not as straightforward as the Virginia Supreme Court in Clark, and other courts, have suggested. This is an important issue. We have sent many military personnel into active duty across the world over the last several years and have numerous others who are members of the Reserves or National Guard. Many of these military individuals are employed by states that do not allow private military employment discrimination actions for monetary damages (the police officer in Clark is a typical example). Hopefully, the Court will grant cert. and clarify this issue.

Stay tuned.

-Jeff Hirsch

Employment Discrimination, Labor and Employment News | Permalink


One of my first tasks when I started as new employment law associate was to research this very issue, and I recall reading your law review article during that process. I'm hopeful that the Supreme Court adopts your view, because our client (a highway patrolman also denied advancement due to his military service) was ill-serviced by the law in that case.

Posted by: Jeremy Summerlin | May 18, 2017 6:10:39 AM

I love the 11th amendment and also have written about the intersection between it and employment law. My fed courts students get a heavy dose of it every year, much to their chagrin. I agree that Katz helps your argument, but not as a matter of Congress's power to abrogate. Katz was not an abrogation case; the Court found that the states surrendered any immunity they might have had in the bankruptcy context by ratifying the Constitution. In other words, immunity never attached in the first place. The war powers might be another instance in which the states surrendered any immunity.

Posted by: Marcia | May 18, 2017 6:23:23 PM

Thanks, Marcia, you’re obviously correct that Katz said it wasn’t dealing with an abrogation, but a lack of “any sovereign immunity defense . . . in proceedings brought pursuant to” bankruptcy laws (and I clarified my post accordingly). Personally, I’m not sure there’s as much of a substantive difference as Katz makes it seem, other than providing a way around the “clear statement” abrogation rule. But none of that matters with USERRA, which clearly expresses an intent to abrogate any state immunity that might exist. My article argued that under the “plan of the convention,” states gave up the ability to use immunity interests to trump federal war powers actions—which is enough to validate USERRA whether the Court wants to talk about abrogation or no immunity at all. The important thing about Katz to my mind is that it debunks the idea used by lower courts that state immunity trumps all federal Article I actions (which is the fault of the Court’s own dicta).

Posted by: Jeff Hirsch | May 19, 2017 11:57:09 AM